'Disappointed' bidder sues MAT after MIS Tender failure

[Damon]

I should have mentioned, if anyone's interested the judgement doc is here:

 

https://files.monckton.com/wp-content/uploads/2023/01/11125118/Judgment-Bromcom-Computers-PLC-v-United-Learning-Trust-United-Church-Schools-Trust.pdf

 

And the claimant's (Bromcom) barrister did a post about the summary here:

 

https://www.monckton.com/brendan-mcgurk-wins-academy-schools-procurement-challenge/

[Quinnzander]

I am confused did the ' disappointed bidder' win the legal dispute? so did they have a case? I think we should highlight the unfair play? otherwise that is victim shaming? no??

[Roberto]

Saying that, in my opinion Bromcom should donate all the money (after costs) to charity rather than half. The point has been proven, but there is risk of damage to their reputation when bidding for large Mats now.

 

Perhaps we should acknowledge that the reputation factor can go both ways?

 

Imagine working for a MAT that had a few incidents where their good faith throughout the bidding process was questionable, and finding that vendors refused to work with you. This could easily result in going through incredibly painful processes to end up having to accept relatively poor value contracts because only a small panel of vendors responded to RFPs and watched everything you did like a hawk.

 

 

I am confused did the ' disappointed bidder' win the legal dispute? so did they have a case? I think we should highlight the unfair play? otherwise that is victim shaming? no??

 

It would appear so. Their win suggests they had a case, yes. I’m not going to comment further on the specifics as my employer could well be involved in supplying services into the education sector and while all my opinions here are my own and not theirs, I’m wary of speaking on some legal or similar topics too much. I think my general comments make my feelings clear enough however.

Edited January 23, 2023 by Roberto

[Lonix]

Either way, this still makes me uncomfortable having dealings with Bromcom but I don't blame people for choosing their MIS and there is more info regarding the Trust.

 

They seem to be in another spot of bother:

https://schoolsweek.co.uk/united-learning-broke-academy-rules-over-133k-duplicate-payment/

[Ditto]

I am confused did the ' disappointed bidder' win the legal dispute? so did they have a case? I think we should highlight the unfair play? otherwise that is victim shaming? no??

They won some of their many claims, but the big one was that without the errors, on points Bromcom would have won the contract.

Edited January 23, 2023 by Ditto

[Quinnzander]

Both love and war are fair games. If they had a case and a judge found that they had been treated unfairly beyond a reasonable doubt and gave Bromcom the victory, I believe we should draw attention to the elephant in the room. They were in the right in this particular case, and I don't believe this is how the forum is feeling. If I am not mistaken, people shouldn't be concerned about doing business with Bromcom as long as they intend to follow the rules. The law exists to shield businesses from these unethical actions. The fact that Bromcom is prepared to litigate these matters demonstrates how honorably Bromcom must behave.

[bald_pig]

I think we've found the bromcom employee!

 

From what I've read, the largest points of the case were thrown out, and the couple of small points that were awarded to bromcom were based on thoughts and feelings, not on the actual tender process, and it's being contensted, so we'll wait and see.

[psydii]

Has anybody done the numbers and looked at how BringMoreData's graphs would look if ULT had awarded to Bromcom? Edited January 23, 2023 by psydii

[Primus]

I think we've found the bromcom employee!

 

From what I've read, the largest points of the case were thrown out, and the couple of small points that were awarded to bromcom were based on thoughts and feelings, not on the actual tender process, and it's being contensted, so we'll wait and see.

 

On that basis do most of you all on here work for United Learning?

 

The post has a very good point, the majority opinion on here still seems to favour the MAT even when a High Court Judge has found against the MAT on numerous issues and the judgment itself seems to hold that Bromcom should have won the tender.

 

No one is perfect, no organisation is perfect and the reality is that there can and is fault on both sides, but the reaction of many has been pretty unfair, IMO.

 

I say this as someone who was responsible for moving the schools in the MAT I work for to Arbor so I certainly have no reason to favour Bromcom.

[bald_pig]

On that basis do most of you all on here work for United Learning?

 

The post has a very good point, the majority opinion on here still seems to favour the MAT even when a High Court Judge has found against the MAT on numerous issues and the judgment itself seems to hold that Bromcom should have won the tender.

 

No one is perfect, no organisation is perfect and the reality is that there can and is fault on both sides, but the reaction of many has been pretty unfair, IMO.

 

I say this as someone who was responsible for moving the schools in the MAT I work for to Arbor so I certainly have no reason to favour Bromcom.

 

I think we're on the side of not suing schools.

 

The problem with what I've read of the judgement is that bromcom should have won the tender, if they'd offered different pricing, which they hadn't, which kind of defeats the purpose of the tender. The point on bromcom not being offered the details is fair enough, but I still wonder if they'd threatened to sue by that point, and UL tried to direct them to talk via solicitors, but that's just speculation on my part.

[elsiegee40]

 

Those who work for, or have connections with, either United Learning or BromCom should declare an interest before participating in this thread.

 

They would also do well to remember that this forum is public and that anything they say may come back to bite them if, as it seems, the legal process is not yet complete.

 

People who don’t work for, or currently have connections with, either of these parties may wish to keep this in mind too.

 

I will point out that EduGeeks are very good at working out when there are undeclared interests particularly from new members of the forum.

Edited January 23, 2023 by elsiegee40

[localzuk]

My main concern with this case is that whilst there does appear to be a win here for Bromcom, the ruling also states that it wasn't intentional by the MAT.

 

The learning exercise being - even with legal advice and trying to do everything right, you could well still get caught out.

 

IMO, its more evidence that schools and MATs should REALLY try to use existing Framework agreements. Most of the legal legwork has been done already.

 

We went with the G-Cloud framework, which allows direct awarding, for example.

 

Oh, and an extension to @elsiegee40's comment - note that most supply contracts usually include clauses about discussing the company or contract during the contract period. So, it may be worth taking that into account (and seeing if such clauses exist and what limitations they apply to you) when commenting publicly.

Edited January 23, 2023 by localzuk

[Theblacksheep]

 

IMO, its more evidence that schools and MATs should REALLY try to use existing Framework agreements. Most of the legal legwork has been done already.

 

We went with the G-Cloud framework, which allows direct awarding, for example.

 

 

Same, but there is quote a difference between gcloud and tender pricing. Hoping companies look at reducing the glcoud pricing

[localzuk]

Same, but there is quote a difference between gcloud and tender pricing. Hoping companies look at reducing the glcoud pricing

True, but that legal peace of mind may well be worth it!

[Primus]

I think we're on the side of not suing schools.

 

No matter what? There's no circumstance where a supplier should?

[Quinnzander]

I wish..

I am a Justice Warrior. and I appear amongst all injustices. I call a spade a spade, and I thought I was reading the comments wrong, because it did seem like you all weren't taking the side of the person who won the court battle, when a court proved they were in the right.

crimes are thrown out of court on a daily basis, it doesn't mean they didn't happen but they couldn't be proven beyond a reasonable doubt. Nothing in court is based on thoughts and feelings.. but facts and actualities. it's a court of law, not a kangaroo court.

[Garacesh]

On that basis do most of you all on here work for United Learning?

False equivalency. The rest of us have been members for years and post in many threads, including technical threads which helps solidify our reason to be here.

A user registering this month (likely this day as it was their first post), posting firstly and only in a highly contentious thread, is always going to smell a bit astroturfy.

I'd say the same about an anti-Bromcom user that registered today/recently and had only posted in this thread.

 

That being said, and to stay on topic, I don't know the full details of this lawsuit and I'm far too busy to read them at work, but I might have a good peruse later.

From what I can gather, a MAT decided to not pick Bromcom. Bromcom alleges this was favouritism because several schools in the trust already used Arbor.

 

But.. good? I don't think I see that as a bad thing. I feel like that's just.. sensible?

If the school are ditching SIMS, and already have not-SIMS somewhere else, that should 100% absolutely get an input (as should all the schools like do like SIMS, if there were any, should have had a say in ditching it)

I'm aware that they have said those schools were excluded from the tender process, but in my absolutely-not-a-lawyer view, I don't think they should have been.

 

Aren't we constantly asking for recommendations/reviews/accounts of first-hand experiences?

If they needed a product, and they knew that Arbor definitely did what they need it to, then why wouldn't they pick Arbor if the prices were even relatively close? That's not only a bunch of schools you don't have to retrain, but also a considerable wealth of knowledge held by folks that probably already do things the way you want them to because you're part of the same MAT, and I can't fathom why a MAT of that size wouldn't have centralised their data formatting/procedures/etc.

 

Even if Bromcom were, let's say 10% cheaper, in my mind I'd still want to be be heavily considering Arbor in that scenario if the rest of my schools were happy with it and it met our requirements. You really can't put a price on that kind of already customised/tailored knowledge at your fingertips. I'm of the opinion that "Cost-effective" isn't just "what's cheapest".

 

But again, I'll express that I haven't read the court docs yet and I might be getting entirely the wrong end of the stick here, so take the above with a pinch, dash, bucket, wheelbarrow or ocean's-worth of salt, to taste.

 

Edit1: To summarise: The courts have clearly decided there's a legal case here, based on the letter of the law, but I'm not convinced (based upon my own admittedly vague understanding) that there's a moral one.

Edit2: Modifying a few phrases, since I'm not actually in the situation and want to make my post distinctly and legally clear.

Edited January 23, 2023 by Garacesh

[elsiegee40]

And before the squabbling gets any worse and we end up straying into banned heated discussion territory, please stick to the topic and stay away from the emotive stuff… ALL OF YOU

 

Posts may be removed without warning

[localzuk]

Aren't we constantly asking for recommendations/reviews/accounts of first-hand experiences?

If they needed a product, and they knew that Arbor definitely did what they need it to, then why wouldn't they pick Arbor if the prices were even relatively close? That's not only a bunch of schools you don't have to retrain, but also a considerable wealth of knowledge held by folks that probably already do things the way you want them to because you're part of the same MAT, and I can't fathom why a MAT of that size wouldn't have centralised their data formatting/procedures/etc.

 

Even if Bromcom were 10% cheaper I'd still be heavily considering Arbor in that scenario. You really can't put a price on that kind of already customised/tailored knowledge at your fingertips.

Sadly, not that simple. First, because the law doesn't really allow that sort of flexibility when deciding in the public sector - there's strict rules to follow. Second, it comes down to the criteria and decisions made by the Trust and how well they stuck to them, and didn't make any unfair decisions or assumptions.

 

Which is why I'm such a proponent of frameworks, and sticking to their guidance/rules like glue. Someone else has done all the risky stuff.

[Garacesh]

Interesting correction, thank you

 

So essentially invisible costs don't exist in procurement-world?

Edited January 23, 2023 by Garacesh

[bald_pig]

I wish..

I am a Justice Warrior. and I appear amongst all injustices. I call a spade a spade, and I thought I was reading the comments wrong, because it did seem like you all weren't taking the side of the person who won the court battle, when a court proved they were in the right.

crimes are thrown out of court on a daily basis, it doesn't mean they didn't happen but they couldn't be proven beyond a reasonable doubt. Nothing in court is based on thoughts and feelings.. but facts and actualities. it's a court of law, not a kangaroo court.

 

I mean, nobody is obligated to take a side, regardless of who wins or loses. And there are plenty of cases that are unjustly won because the correct side has poor/inadequate representation, so that point is moot.

[bald_pig]

Interesting correction, thank you

 

So essentially invisible costs don't exist in procurement-world?

 

My understanding is you have to be able to fairly evaluate and give it weighting, which I suppose you could do in terms of implementation times, learning times, etc. but it is a minefield, and one I'm glad I don't have to be involved in!

[GrumbleDook]

Having done procurements on and off framework (on both sides), this has been an interesting discussion. As has rightly been said by @localzuk, running procurements is hard and even the best of folk get things wrong. Scope change/creep, marking criteria changes/updates, upselling/discounts ... it is a veritable minefield.

I take 2 things from this case.

1) get someone independent to build the scoring criteria based on your needs analysis. You can update that criteria up to a certain point and then you lock it, with deadlines and submission methods all published and agreed.

2) The MIS market is getting increasingly cut-throat and whilst framework prices might be more than what you can negotiate through large tenders, it may be the easiest way to offset the risk in your Trust.

There are no simple solutions when it gets to this stage in a relationship between a potential customer and potecntial supplier, and the reputation side of things works both ways. I know some might raise eyebrows about dealing Bromcom (if you do things the right way, then it shouldn't be an issue, surely), but there may be some vendors that shy away from the trust now when it comes to bidding. I know that used to happen with some LAs. They would release an opportunity and hear very little back ... and it should not be this way. Not if we all want the best for the schools (won't anyone think if the children?!? ... someone had to say it).

Until we find out what happens with damages, this is a bit of a moot point.

It is still going to be an interesting year in EdTech, no matter what.

Edited January 23, 2023 by elsiegee40

[Damon]

Edit: Took so long to write this that the question has already been answered...!

 

I get where you're coming from with the costs side of things but that's not what happened here. In the case of a tender, you set out the way the submission will be scored from the start and make it clear to all suppliers. You might say, 30% on costs, 30% on service delivery and 40% on ability to deliver the requirements. If Bromcom won after the impermissible Arbor discount was removed, then it means they did well on the other areas too. Bear in mind that UL wrote the tender themselves and based it on their own exacting requirements. So if it was really close but there were fundamental issues skewing the 'fairness' of the competition then it suggests that both products were very capable of delivering what UL wanted.

 

If you were running your own tender, you might feel that cost is less important, so you could reduce the weighting. However, the point is, if you set the rules, you then need to grade by them, and it may mean that you end up choosing a different supplier to who you had in mind originally because they have proven to be more capable of delivering based on what you requested and scored on. That isn't directed at UL, I just mean as a general approach to tendering. It's not a price thing, it's an overall score that's what's important. In this case, after the price adjustment and so on, it was shown that Bromcom were the winner by a fair margin.

 

Lastly, as per the suggestion from an earlier post, I'd direct people to my sig. I do like Bromcom as a product, I like the people there and do work with them a fair amount as part of my various roles (contracting). I have colleagues that work with Arbor and likewise have no complaints there but I personally don't know the product as well. I came here to see the reaction to this as it's important for me to understand how it will impact Trusts and Schools.

Edited January 23, 2023 by Damon

[Theblacksheep]

True, but that legal peace of mind may well be worth it!

 

exactly why we went framework